Stambolziovski v Nestorovic (No 3)

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District Court


New South Wales

Medium Neutral Citation: Stambolziovski v Nestorovic (No 3) [2014] NSWDC 346
Hearing dates:4 December 2014
Date of orders: 04 December 2014
Decision date: 04 December 2014
Jurisdiction:Civil
Before: P Taylor SC DCJ
Decision:

(1)   Dismiss the application for indemnity costs and I confirm the costs orders made on 30 September 2014.
(2)   Order that there be no order in respect of the costs of today with the intent that these costs do not fall within the terms of the costs ordered on 30 September 2014 but that each party bear their own costs of today.

Catchwords: COSTS – application for indemnity costs order – based on offer of compromise – offer for judgment for defendant with each party to pay its own costs – whether unreasonable for offer to be rejected – whether a genuine compromise – multiple claims pleaded – offer to one of two defendants
Legislation Cited: Uniform Civil Procedure Rules 2005, r 1.11, r 20.26, r 42.1, r 42.7, r 42.15A
Cases Cited: Simmons v Rockdale City Council (No 2) [2014] NSWSC 1275
Stambolziovski v Nestorovic (No 2) [2014] NSWDC 292
Texts Cited: Ritchie’s Uniform Civil Procedure NSW
Category:Costs
Parties: Blaga Stambolziovski (plaintiff)
Lilly Nestorovic (first defendant/cross-claimant to second cross-claim)
Camanaro Prestige Properties Pty Limited ACN 101 515 744 t/as Sydneyhome Real Estate Ramsgate Beach (second defendant)
Sasha Stambolziovski (cross-defendant to second cross-claim)
Representation:

Counsel:
Mr Tzatzagos (plaintiff)

  Solicitors:
Brydens Compensation Lawyers (plaintiff)
Gadens Lawyers (first defendant/cross-claimant to second cross-claim)
File Number(s):2011/401832
Publication restriction:None

Judgment

  1. On 30 September 2014 I gave judgment in favour of the defendants in proceedings commenced by Mrs Blaga Stambolziovski (see Stambolziovski v Nestorovic (No 2) [2014] NSWDC 292), and made orders for the defendants’ costs to be paid by Mrs Stambolziovski. Order (5), made on that day, was in the following terms:

“(5) I defer entry of any order in respect of costs for 14 days and thereafter until further order in the event that any party seeks to argue that a different costs order should be made.”

  1. The first defendant, Lilly Nestorovic, made an application for a special costs order relying upon an offer of compromise dated 29 November 2013 which was the subject of further correspondence on 9 April 2014 remaking that same offer.  The offer of compromise dated 29 November 2013 was in the following terms:

"Defendant's offer of compromise in accordance with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW), the first defendant makes an offer to compromise the plaintiff's claim in this proceeding on the following terms:

1.  Judgment for the first defendant.

2.  Each party to pay its own costs.

This offer remains open for acceptance for 28 days from the date of this offer of compromise."

  1. The covering letter of that offer stated:

"We enclose by way of service an offer of compromise.  The offer is made without prejudice except as to costs and interest.

The offer remains open for 28 days…

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Details
Case
[2014] NSWDC 346
Decision Date

CaseChat Overview and Summary

The case of Stambolziovski v Nestorovic (No 3) involved a dispute between the plaintiff, Stambolziovski, and the defendant, Nestorovic, concerning an application for indemnity costs. The matter was heard by the court, which was tasked with determining whether the defendant's offer of compromise was unreasonable and whether it constituted a genuine attempt at resolution. The dispute arose from a broader litigation process that included multiple claims and parties, and the specific focus was on the defendant's offer, which was made to one of the two defendants.

The court was required to assess the reasonableness of rejecting the defendant's offer, which proposed that each party bear its own costs. This assessment involved a consideration of whether the offer was genuine and whether it was made in a timely and reasonable manner. The court also needed to determine whether the offer, by only addressing one of the two defendants, was sufficient to be considered a genuine compromise in the context of the litigation.

The court found that the defendant's offer was not unreasonable to reject and did not constitute a genuine compromise. The reasoning was based on the fact that the offer did not address the claims against both defendants and therefore did not adequately address the full scope of the litigation. The court confirmed the costs orders made previously and dismissed the application for indemnity costs. The court further directed that the costs incurred on the day of the hearing were to be borne by each party individually, separate from the costs ordered on 30 September 2014. This decision effectively resolved the matter concerning the indemnity costs application, ensuring that neither party was granted an undue advantage in terms of litigation costs.

Orders

Orders of the court

(1) Dismiss the application for indemnity costs and I confirm the costs orders made on 30 September 2014.

(2) Order that there be no order in respect of the costs of today with the intent that these costs do not fall within the terms of the costs ordered on 30 September 2014 but that each party bear their own costs of today.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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